Yelp Reviews to Get Responses from Businesses; Defamation and Online Reviews

After years of contention between the online review site and businesses, Yelp has agreed to allow business an opportunity to respond on the yelp.com site to negative reviews. With the growing power of online reviews, many businesses wonder whether customer reviews can constitute defamation.

As reported in the New York Times, starting next week, Yelp will allow business owners to publicly respond to reviews on the site. It's been a long process getting to this point. A year ago, Yelp began allowing businesses to contact negative reviewers via email. Now they will be able to address complaints in a manner viewable to everyone.

So, can someone review your business in a manner that constitutes defamation? In short, yes. But holding them to account is an uphill battle.

State laws concerning defamation vary, but generally, defamation has four elements:

A false and defamatory statement concerning the plaintiff;

Publication of that false and defamatory statement;

At least negligence on the part of the person publishing the statement; and

Damages to the plaintiff (in defamation cases, this is damage to reputation).

What are some of the difficulties faced in pursuing a defamation case over an online review?

To begin with, if thinking about suing the review site itself, forget about it. Section 230 of the Communications Decency Act generally prevents providers or users of interactive services from being liable for content provided by someone else.

Additionally, many states (including California) have legislation against what are called “SLAP” suits. SLAP stands for “Strategic Lawsuits Against Public Participation.” Anti-SLAP statutes allow defendants an opportunity to request quick dismissal of suits that suppress free speech, often protecting those who have spoken on matters of public interest or concern. To get past this stage, a plaintiff needs to show they will likely succeed on the merits of their case, or it gets thrown out.

On the merits, proving falsity of a review can be difficult. Reviews inherently involve matters of subjective impression. Someone could write the world’s most damning review of your restaurant’s award winning tiramisu, but it’s hard to prove falsity in someone not liking it.

But, as a California court made clear at the end of March, online reviews can be defamatory. As PC World reported, a Santa Clara County judge allowed a dentist’s defamation suit against Yelp reviewers to proceed, holding that the suit had a likelihood of succeeding on the merits.